Sellman v. Haddock

• Decision Date: 19 October 1959
• Docket Number: No. 6555,6555
• Citation: 66 N.M. 206,345 P.2d 416,1959 NMSC 82
• Parties: O. W. SELLMAN and Ralph Apodaca, Ancillary Receiver for Insurance Company of Texas, Plaintiffs-Appellees, v. Dewey W. HADDOCK, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 416

345 P.2d 416

66 N.M. 206

O. W. SELLMAN and Ralph Apodaca, Ancillary Receiver for Insurance Company of Texas, Plaintiffs-Appellees, v. Dewey W. HADDOCK, Defendant-Appellant.

No. 6555.

Supreme Court of New Mexico.

Oct. 19, 1959.

W. C. Whatley, E. H. Williams, Jr., Las Cruces, for appellant.

Garland & Martin, Las Cruces, for appellees.

PER CURIAM.

Upon consideration of motion for rehearing, the opinion heretofore filed is withdrawn and the following substituted therefor.

COMPTON, Justice.

This is the second time the case has been here. Sellman v. Haddock, 62 N.M. 391, 310 P.2d 1045. On the former appeal we did not consider the case on its merits. We reversed for failure of the plaintiff to join an indispensable party, the Receiver of Insurance Company of Texas. The cause was remanded 'with directions to grant a new trial, permitting such amendments of the pleadings as may be necessary to make all persons claiming an interest in the alleged cause of action parties to the suit.'

The action arose as a result of a collision between motor vehicles driven by Sellman and Haddock. The collision occurred at the intersection of Franklin Street and Canal Road in the Village of Hatch. Sellman was driving north on Franklin, and Haddock was traveling west on Canal Road. The point of impact was at or near the southeast corner of the intersection. Both vehicles were damaged.

Upon remand, an amended complaint was filed in which Ralph Apodaca, Ancillary Receiver of Insurance Company of Texas, joined as a party plaintiff. The complaint charged that appellant's negligence in the operation of his vehicle was the proximate cause of the collision and resulting injury. Appellant joined issue and, by counterclaim, sought damages both for injuries to his vehicle and for the loss of its use. He alleged that Sellman's negligence in failing to yield the right-of-way was the proximate cause of the collision. The cause was tried to the court; judgment was entered awarding damages to appellee Sellman in amount of $93.35, and to appellee Ralph Apodaca, Ancillary Receiver of Insurance Company of Texas, Sellman's insurance carrier, in amount of $436.86, and appellant appealed.

Appellant first complains of the action of the trial court in denying him a trial by jury upon the filing of the amended complaint. We see no error in the ruling of the court. The original complaint was filed August 8, 1955, and thereafter a jury was waived. When a plaintiff has waived a jury trial and subsequently amends his complaint, such amendment does not entitle him to a jury as a matter of right, unless the amendment changes the nature of the case or introduces new issues. American Fidelity & Casualty Co. v. All American Bus Lines, 10 Cir., 190 F.2d 234, certiorari denied 342 U.S. 851, 72 S.Ct. 79, 96 L.Ed. 642; Roth v. Hyer, 5 Cir., 142 F.2d 227, certiorari denied 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573; Steinhardt Novelty Co. v. Arkay Infants Wear, D.C., 10 F.R.D. 321; Reeves v. Pennsylvania R. Co., D.C., 9 F.R.D. 487; Kansas Electric Power Co. of Leavenworth Kansas v. Janis, 10 Cir., 194 F.2d 942. Comparing the complaints, we find the original and amended complaint to be substantially the same; however, the latter includes an allegation that Insurance Company of Texas was Sellman's insurance carrier and that the company had an interest in the cause of action by reason of certain payments made by it to Sellman. At the hearing, the parties stipulated as to the authority of Apodaca to maintain the suit for Insurance Company, and further, that the testimony taken at the former hearing be admitted in evidence. It is clear that the amendment did not change the nature of the case or present new issues.

Appellant further complains that the court erred in striking his affidavit of disqualification. Following the filing of the amended complaint, appellant sought to disqualify Judge Walker, one of the two resident judges, the other resident judge, having tried the cause previously, recused himself on remand. The affidavit was stricken as untimely, and we think correctly so. As previously stated, the issues involved arose out of the occurrence set forth in the original complaint and the amendment related back to the time of the filing of the original pleading, August 8, 1955. Rule 15(c), our Rule of Civil Procedure. The time, therefore, for disqualifying the trial judge had expired. State v. Sanchez, 58 N.M. 77, 265 P.2d 684; Notargiacomo v. Hickman, 55 N.M. 465, 235 P.2d 531; Heron v. Gaylor, 53 N.M. 44, 201 P.2d 366.

Finally, appellant challenges the sufficiency of the evidence. The court found that Franklin Street was a through street, and that appellant's negligence in failing to stop at the intersection was the proximate cause of the collision. We think the...